Aspen Square Management v. Walker

644 N.E.2d 237, 37 Mass. App. Ct. 970, 1994 Mass. App. LEXIS 1180

Opinion

The defendants appealed from the judgment for possession for the landlord, but they failed to docket their appeal within the time fixed by Mass.R.A.P. 10(a)(1), as amended, 378 Mass. 937 (1979). The landlord filed a motion to dismiss the appeal in the trial court. Before it was heard, the defendants filed a motion in this court for late docketing, arguing only that Mass.R.A.P. 10(c), as amended, 378 Mass. 938 (1979), entitled them to late docketing because their motion, tendered before dismissal of the appeal in the trial court, cured their noncompliance with rule 10(a). The single justice denied the motion for late docketing. Thereafter, the trial judge, after hearing, ordered the appeal dismissed.

Both orders were correct. The single justice acted well within her discretion because the defendants had not made the showing for late docketing required by Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct. 377, 379 (1975), and Maciuca v. Papit, 31 Mass. App. Ct. 540, 546 (1991). The filing of a motion for late docketing does not cure the noncompliance within the meaning of rule 10(c) unless that motion is allowed prior to action by the trial court on the motion to dismiss the appeal.

Order denying motion for late docketing affirmed.

Order dismissing appeal affirmed.